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A complicated relationship: The ECtHR, media, privacy & freedom of expression

About The Author

Chris Bridges (Executive Editor)

Chris is an IT and Data Protection solicitor at a top 20 full service firm and the founder of Keep Calm Talk Law. He also contributes to Computers and Law and other sector specific publications.

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Hugh Tomlinson QC, a well-regarded media and privacy law expert, has recently criticised the ECtHR for blurring the boundaries between privacy and defamation cases.

Therefore, in this article I will attempt to highlight the difference between the two categories of case by examining the history of the development of a tort of privacy in UK law. Then I shall consider how, as Tomlinson highlights, the ECtHR are failing to treat them differently, and why they should be.

History

An excellent ‘history’ of privacy law is given by Lord Hoffman in his leading judgement in Wainwright and another v. Home Office [2003] (Wainwright), on which much of my summary is based.

Judge Cooley gave the historic definition of privacy (Cooley on Torts, 2nd ed (1888), p 29); he believed the right of privacy was "the right to be let alone". At this time, he saw it as a “general principle which protected a person's appearance, sayings, acts and personal relations from being exposed in public.”

The US Courts liked this idea, and privacy jurisprudence started to emerge. However, privacy did not develop as one tort, but several. Dean Prosser, in Law of Torts, 4th ed (1971), split these into four:

  1. “intrusion upon the plaintiff's physical solitude or seclusion (including unlawful searches, telephone tapping, long-distance photography and telephone harassment)”;
  2. “public disclosure of private facts”;
  3. “publicity putting the plaintiff in a false light”;
  4. “appropriation, for the defendant's advantage, of the plaintiff's name or likeness”.

The UK has never developed an overarching principle of privacy, but we do have torts that can loosely be associated with the above, and are numbered correspondingly:

  1. The common law torts of trespass and nuisance (although strictly speaking these are in the domain of land law, not privacy, and have been of little use in privacy claims), and the statutory remedies found in the Protection from Harassment Act 1997 (introduced largely to rectify the lack of available claim under trespass and nuisance, discussed below).
  2. The equitable action for breach of confidence, and statutory remedies found in the Data Protection Act 1998 in relation to ‘data controllers’.
  3. The common law torts of defamation and malicious falsehood. (Common law defamation now superseded by the Defamation Act 2013, see my article ‘Defamation Dragged into the 21st Century?’.)
  4. No such corresponding law within the UK, although it is illegal to impersonate certain persons, such as a police officer (see Section 90 Police Act 1996). However, you may have a ‘secondary’ claim under a separate tort or criminal offence, any of the above or fraud. (By impersonating someone, you may be distributing private information, harassing them, or if acting to the detriment of their reputation based on falsehoods, defamation or malicious falsehood).

Lord Hoffman goes on to show that where judges have wanted to apply principles of privacy, they have done so using existing principles. For instance, the equitable action for breach of confidence is often used in such a way, notably in Campbell v MGN Ltd [2003]. In Campbell the House of Lords acknowledged that the Human Rights Act 1998 has horizontal effect on disputes between private parties, and as such the courts were obliged apply Articles 8 and 10 of the ECHR (see paragraphs 17-18, Lord Nicholls). In order to do this, the Court of Appeal, in A v B plc [2003], held that the articles should be absorbed into the equitable action for breach of confidence. Consequently, private information can now be the subject of a breach of confidence, even where the information is not confidential.

Where the Courts have failed to apply principles of privacy, parliament has legislated (e.g. in Hunter v Canary Wharf Ltd [1997] nuisance could not be used in relation to telephone harassment, but the Protection from Harassment Act 1997 introduced a solution). Wainright cites a long chain of UK senior court decisions where judges have refused to introduce a freestanding right of privacy. The judgement further cites the Calcutt Committee’s “Report of the Committee on Privacy and Related Matters (1990)”, which expressly states that no tort of infringement of privacy should exist, and instead tightly defined specific remedies and criminal offences should continue to be created. The reason: an overarching right of privacy would simply be too uncertain.

Lord Hoffman concludes that there is no such tort of invasion of privacy, and instead suggests that privacy is simply a principle which underlies the Rule of Law. This is where the law on a specific tort of privacy lies today, although the recent judgement of Vidal -Hall & Ors v Google Inc may suggest otherwise, as discussed in my article ‘Google to get a slap on the wrist for ‘stalking adverts’?’ a number of weeks ago (co-incidentally, Tomlinson represented the claims in this case). However, the future of such a tort will likely come to light when the main hearing in Vidal takes place, most likely later this year.

The emergence of a distinct tort of infringement of privacy is, in practice, unlikely to make much difference. Claimants can already claim under the equitable doctrine of breach of confidence. However, as you must come to equity with clean hands, privacy as a right does not technically exist, where as it would under a tortious remedy. As privacy exists ‘as a right’ within the ECtHR and by virtue of the HRA 1998 in UK law, this improvement is made irrelevant.

Defamation independent from Privacy

You may now be thinking that perhaps defamation as an independent legal principle requiring a different approach to standard ‘privacy’ cases is a peculiarity of the English system, after all, the US appears to categorise it as a ‘privacy tort’, as does the ECtHR.

However, that does not necessarily mean our law on defamation is wrong, and that the jurisprudence of the ECtHR is correct. So first, let us address the distinction between privacy and defamation.

Privacy

The earliest definition of privacy given by Judge Cooley is perhaps the best to consider, “the right to be left alone.” This clearly encapsulates number one of the above categories, which can essentially be summarised as harassment. The second category is again clear-cut, and clearly is encapsulated by this definition. The encapsulation of the fourth category (impersonation) is less clear, and unless you are a law enforcement officer, this has little implication under UK lawunless through a ‘secondary’ claim.

Defamation

Defamation is considerably different from all of the above in one important way. Harassment and impersonation are physical acts that infringe privacy, and public disclosure of private facts are exactly this: facts. Defamation on the other hand is defined by a legal dictionary as “the act of making untrue statements about another which damages his/her reputation.“ Therefore, a defamatory comment is much closer to an opinion, and as a defamatory comment is not based on fact, how can it be an infringement of privacy? A claim in defamation does not require consideration of questions of privacy. It may be beneficial to think of defamation as a tort protecting ‘the right not to have lies told about you’ rather than a claim concerning the right to privacy.

Therefore, if a statement is true, it should not be classed as defamatory, hence the common law defence of justification, now replaced by the statutory defence of ‘Truth’ (Section 2 Defamation Act 2013). Likewise, in line with the freedom of expression, honest opinion, which is reasonable, should also not be considered defamatory, and as such there is a statutory defence of ‘Honest Opinion’ (Section 3 Defamation Act 2013), which supersedes the weaker common law defence of ‘fair comment’.

I could go on and list the other defences, however my article ‘Defamation Dragged into the 21st Century?’ does this. From the above it should however be clear that defamation is essentially concerned with remedying damage dealt where damage was not due. Whether revealing true facts or honest opinions is a breach of privacy is an entirely different matter, and someone that fails with a claim for defamation may well be able to prove a ‘breach of privacy’ via one of the other remedies mentioned above (or via the emerging distinct tort of infringement of privacy).

If we were unable to express facts or reasoned opinions, our right to freedom of expression under Article 10 ECHR would essentially be eroded.

The Blurring of the Boundaries

Tomlinson suggests the blurring started in 2004 in Chauvy v France when the ECtHR recognised the right to reputation as part of the right to privacy, despite such a right being deliberately left out when Article 8 was drafted. This means that judges must balance the freedom of expression (Article 10) and the right of reputation (Article 8), from an equal starting point, as they must in privacy cases. Nevertheless, until recently judges have been careful to maintain a distinction between defamation and privacy cases. That is, up to and including White v Sweden. Up until then, Tomlinson states:

the Court balanced privacy and expression by considering the nature and extent of the obligation to verify factual statements. In defamation cases the touchstone remained that of “truth” and the steps which ethical journalists are required to take to ascertain whether a defamatory statement is true.

Although not strictly in line with UK defamation law, or the belief that privacy is of no concern in defamation cases, this was an acceptable position. The problem however started in 2012 with Axel Springer v Germany, where the court started to apply criteria used to balance article 8 and 10 in privacy cases, as opposed to the above analysis based on truth and verification. The criteria Tomlinson refers to are:

(i) contribution to a debate of general interest;

(ii) how well known is the person concerned and what is the subject of the report;

(iii) prior conduct of the person concerned;

(iv) method of obtaining the information and its veracity/circumstances in which the photographs were taken;

(v) content, form and consequences of the publication;

(vi) severity of the sanction imposed.

These, Tomlinson suggests, have no obvious relevance to claims for defamation, but are correct for privacy (balancing the strength of the privacy rights against the public interest). As highlighted above, the only question truly relevant to a claim for defamation is ‘was the statement true?’

In a separate article, Tomlinson examines the decision in Zeitungsverlag GmbH v Austria, which applied the above criteria to a defamation claim, arguably resulting in an incorrect outcome. The case concerned a newspaper that published an anonymous letter that had been circulated around two towns in Austria regarding two politicians. The letter read:

1.  Would you buy a car from this man? 2. Would you stake your money on a promise made by this man? 3. Does this man have the necessary personal/professional qualifications? 4. Has this man ever built anything properly? 5. Is this man honest with his own family? 6. Would you allow this man to execute your will? If you have answered one of these questions with ‘no’, please ask yourself why you want to leave this man in his current position.

The two politicians successfully sued the newspaper for defamation. As you can see, the letter was framed as a series of questions and does not attempt to allege any facts. How, you might ask, can a series of non-facts possibly be construed as an untrue statement that causes damage to reputation? Instead of asking this essential question, the ECtHR applied the Axel Springer criteria (for a more detailed analysis, see Tomlinson’s article on the case).

Tomlinson highlights that whilst these questions could be construed as making defamatory insinuations, there were no actual factual allegations of wrongdoing. Furthermore, the newspapers published the politicians’ responses to the allegations the letter insinuated, and would therefore be considered as ‘responsible journalism’. Finally, the questions were part of a political debate. This is clearly the wrong decision.

Why does it matter?

What is the point in having a right to freedom of expression under Article 10, if a reasonable opinion cannot be publically held, nor can you publish facts that they have responsibly sourced without fear of reprisal? If a newspaper, or anyone else for that matter, is unable to publish factual content or reasoned opinion, then what else can they publish?

This is not to say that the right to privacy under Article 8 should come second to the right to freedom of expression (Article 10). Both are equally important, and we could not possibly condone breaches of people’s privacy in order to obtain facts, as the News of the World phone hacking scandal has demonstrated.

If a statement is true, but it has been discovered via an unreasonable source or it is not of public interest, then the correct claim to bring is one for breach of privacy.

Therefore, it is a question of classification. By finding someone guilty of defamation where a reasonable opinion or set of facts was published, you are restricting the ability to tell the truth, and therefore their freedom of expression. However, if an opinion has been formulated through illicit journalism, or overstepped the ‘public interest line’, this is a question of privacy, and should be framed as such; this is where the balancing of Article 8 and Article 10 comes into play.

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Tagged: Commercial Law, Defamation, Human Rights, Media, Privacy Law

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